21-184821-1848
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF DENTON, A TEXAS HOME -RULE MUNICIPAL
CORPORATION, AUTHORIZING THE CITY MANAGER TO EXECUTE A CONTRACT WITH
ESQ SOLUTIONS, INC., FOR A RECORDS MANAGEMENT AND ELECTRONIC PATIENT
CARE REPORTING (EPCR) SYSTEM FOR THE FIRE DEPARTMENT; PROVIDING FOR THE
EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 7642
AWARDED TO ESO SOLUTIONS, INC., IN THE FIVE (5) YEAR NOT -TO -EXCEED
AMOUNT OF $383,504.00).
WHEREAS, the City has solicited, received, and evaluated competitive proposals for a
records management and Electronic Patient Care Reporting (ePCR) system for the Fire Department;
and
WHEREAS, the City Manager, or a designated employee, has received, reviewed, and
recommended that the herein described proposals are the most advantageous to the City considering
the relative importance of price and the other evaluation factors included in the request for
proposals; and
WHEREAS, the City Council has provided in the City Budget for the appropriation of funds
to be used for the purchase of the materials, equipment, supplies, or services approved and accepted
herein; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The items in the following numbered request for proposal for materials,
equipment, supplies, or services shown in the "Request Proposals" on file in the office of the
Purchasing Agent, are hereby accepted and approved as being the most advantageous to the City
considering the relative importance of price and the other evaluation factors included in the request
for proposals.
RFP
NUMBER CONTRACTOR AMOUNT
7642 ESO Solutions, Inc. $383,504.00
SECTION 2. That by the acceptance and approval of the above numbered items of the
submitted proposals, the City accepts the offer of the persons submitting the proposals for such items
and agrees to purchase the materials, equipment, supplies, or services in accordance with the terms,
specifications, standards, quantities, and for the specified sums contained in the Proposal Invitations,
Proposals, and related documents.
SECTION 3. That should the City and person submitting approved and accepted items wish
to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the
proposals, the City Manager, or their designated representative, is hereby authorized to execute the
written contract which shall be attached hereto; provided that the written contract is in accordance
with the terms, conditions, specifications, standards, quantities, and specified sums contained in the
Proposal and related documents herein approved and accepted.
SECTION 4. The City Council of the City of Denton, hereby expressly delegates the
authority to take any actions that may be required or permitted to be performed by the City of
Denton under this ordinance to the City Manager of the City of Denton, or their designee.
SECTION 5. By the acceptance and approval of the above enumerated bids, the City
Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with
the approved bids.
SECTION 6. This ordinance shall become effective immediately upon its passage and
approval.
The motion to approve this ordinance was made by --Yes5e -Z)ay," .' and
seconded by &C ; c.xo This ordinance was passed and approved by the
following vote [ -2_ - C:
Mayor Gerard Hudspeth:
Vicki Byrd, District 1:
Brian Beck, District 2:
Jesse Davis, District 3:
Alison Maguire, District 4:
Deb Armintor, At Large Place S
Paul Meltzer, At Large Place 6:
Aye Nay
4—
V/J
Abstain Absent
PASSED AND APPROVED this the day of e�}et,n�:;"` , 2021.
GERARD HUDSPETH, MAYOR
ATTEST:
ROSA RIOS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
CATHERINE CLIFTON, INTERIM CITY ATTORNEY
Digitally signed by Marcella Lunn
DN: cn=Marcella Lunn, o,
ou=city of Denton,
- a� _ ly�_ email=marcella.lunn@cityofdent
BY: on.com, c=US
Date: 2021.09.2414:09,47 05'00'
DocuSign Envelope ID: A3520113-D315-43FE-902F-CF5802385956
IOFACOM
DENTON
Docusign City Council Transmittal Coversheet
RFP
7642
File Name
FIRE RECORDS MANAGEMENT
Purchasing Contact
Ginny Brummett
City Council Target Date
SEPTEMBER 14, 2021
Piggy Back Option
Yes
Contract Expiration
SEPTEMBER 14, 2026
Ordinance
21-1848
L
DocuSign Envelope ID: A3520113-D315-43FE-9D2F-CF5BD2385956
ORDER INSTRUCTIONS
1. Fill in Contact Info Below
Contact
Name
Email
Phone
Primary Business Contact
Battalion Chief David
Becker
David.Beeker@cityofdenton.com
(940) 349-8834
N/A (To be billed by Cbange
Invoicing Contact
Healthcare Technology
NIA
N/A
Enabled Services, LLC)
Legal Contact
City Attorney's Office
N/A
(940) 349-8333
Software Administrator
Cherie Reed
cherie.reed@cityofdenton.com
(940) 349-7533
Contact
Privacy4]E[PAA Contact
Battalion Chief David
David.Becker@cityofdenton.com
(940) 349-8834
Becker
Tax Exempt?
N/A
If YES, return Exempt Certificate with Agreement
Purchase Order
N/A
If YES, return PO with Agreement
Required?
2. Sin vage 8 & the last page.
3. Email entire contract to legal(ieesosolutions.com and your sales representative.
4. Enioy your ESO Software
DocuSign Envelope ID: A3520113-D315-43FE-9D2F-CF5BD2385956
MASTER SUBSCRIPTION AND LICENSE AGREEMENT
09/14/2021
This Master Subscription and License Agreement (the "Agreement") is entered into as of ("Effective Date"),
by and between ESO Solutions, Inc., a Texas corporation having its principal place of business at 11500 Alterra Parkway, Ste 100, Austin, Texas
78758 ("ESO") and City of Denton ("Customer") having its principal place of business at 215 East McKinney Street., Denton, Texas 76201. This
Agreement consists of the General Terms & Conditions below and any Addenda (as defined below) executed by the parties, including any
attachments to such Addenda.
The parties have agreed that ESO will provide Customer with certain technology products and/or services and that Customer will pay
to ESO certain fees. Therefore, in consideration of the covenants, agreements and promises set forth below, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the parties, intending to be legally bound, hereby agree as set forth in
the pages that follow.
GENERAL TERMS AND CONDITIONS
1. DEFINITIONS. Capitalized terms not otherwise defined in this
Agreement shall have the meanings below:
1. 1, "Add -On Software" means any complementary software
components or reporting service(s) that ESO makes
available to customer through its Licensed Software,
Interoperability Software or SaaS.
1.2. "Addendum" or "Addenda" means a writing addressing an
order of a specific set of products or services executed by
authorized representatives of each party. An Addendum
may be (a) a Software Schedule (see Exhibit Al —A4), (b) a
Statement of Work, or (c) another writing the parties intend
to be incorporated by reference into this Agreement.
1.3. "Customer Data" means data in electronic form managed or
stored by ESO, which is entered into or transmitted through
the Software.
1.4. "Deliverable" means software, report, or other work product
created pursuant to a Statement of Work..
1.5. "Documentation" means user guides, operating manuals,
and specifications regarding the Software covered by this
Agreement.
1.6. "Feedback" refers to any suggestion or idea for improving
or otherwise modifying ESO's products or services.
1.7. "Intellectual Property" means trade secrets, copyrightable
subject matter, patents, and patent applications and other
proprietary information, activities, and any ideas, concepts,
innovations, inventions and designs,
L8. "Interoperability Software" means software -as -a -service
that ESO hosts (directly or indirectly) for Customer to
exchange healthcare data with others. Some of ESO's
Reporting Services may be made available to Customer via
the Interoperability Software. For the avoidance of doubt,
Interoperability Software does not include Add-on
Software, Licensed Software or SaaS.
1.11. "Protected Health Information" or "PHI" shall have the
meaning set forth in HIPAA. All references herein to PHI
shall be construed to include electronic Will, or ePHI, as
that term is defined by HIPAA.
7.12: "Reporting Services" means collectively the different
programs or tools ESO provides for Customer to generate
compilations of data, including but not limited to ad-hoc
reports, analytics, benchmarking or any other reporting tool
provided through the Software.
1,13. "SaaS" means software -as -a -service that ESO hosts
(directly or indirectly) for Customer's use. For the
avoidance of doubt, SaaS does not include Licensed
Software, but does include Add-on Software and
Interoperability Software.
1.14. "Software'' means any computer program, programming or
modules specified in each Software Schedule or SOW. For
the avoidance of doubt, Add-on Software, SaaS;
Interoperability Software; and Licensed Software shall
collectively be referred to as Software.
1.15. "Software Schedule" refers to an Addendum in which
Customer has ordered either Add-on Software, Licensed
Software, Interoperability Software or SaaS, collectively
Software. See Exhibits Al —A4.
1.16. "Statement of Work" or "SOW" refers to an Addendum in
which Customer has ordered Professional Services or a
Deliverable from ESO.
1.17. "Support Services" means those services described in
Exhibit B.
1.18. "User" means any individual who uses the Software on
Customer's behalf or through Customer's account or
passwords, whether authorized or not.
2. SOFTWARE SCHEDULES. During the Term of this
Agreement, Customer may order Software from ESO by signing
a Software Schedule. Customer's license to Licensed Software
1.9. "Licensed Software" means on premise software that ESO and its subscription to SaaS are set forth below. Each such
provides to Customer for its reproduction and use. For the Software Schedule, Exhibits A-1, A-2, A-3, and A-4, are
avoidance of doubt, Licensed Software does not include incorporated herein by reference.
Add-on Software, Interoperability Software or SaaS.
3. LICENSE/SUBSCRIPTION TO SOFTWARE
1.10. "Professional Services" means professional services that a
Statement of Work calls on ESO to provide. 3.1. Grant of License. In the case of Licensed Software, during
the Term of this Agreement ESO hereby grants Customer a
ESO —MSLA v.20170519
Confidential & Proprietary
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DecuSign Envelope ID: A3520113-D315-43FE-9D2F-CF5BD2385956
limited, non-exclusive, non -transferable, non -assignable,
revocable license to copy and use the Licensed Software, in
such quantities as are set forth on the applicable Software
Schedule and as necessary for Customer's internal business
purposes; provided that, Customer complies with the
Restrictions on Use (Section 3.3) and other limitations and
obligations contained in this Agreement. Such internal
business purposes do not include reproduction or use by any
parent, subsidiary, or affiliate of Customer, or any other
third party, and Customer shall not permit any such use.
4.2, Service Level Agreement. No credits shall be given in the
event Customer's access to SaaS is delayed, impaired or
otherwise disrupted (collectively, an "Outage"). If such
Outage, excluding Scheduled Downtime (as defined below),
results in the service level uptime failing below 99% for
three consecutive months or three months in any rolling
twelve-month period (collectively, "Uptime Commitment"),
then Customer shall have the option to immediately
terminate this Agreement, and ESO will refund any prepaid,
unearned Fees to Customer. This is Customer's sole remedy
for ESO's breach of the Uptime Commitment.
3.2. Grant of Subscription_. In the case of SaaS, ducting the term
of this Agreement Customer may access and use the SaaS, 4.3
in such quantities as are set forth an the applicable Software
Schedule; provided that, Customer complies with the
Restrictions on Use (Section 33) and other limitations
contained in this Agreement.
3.3. Restrictions on Use. Except as provided in this Agreement
or as otherwise authorized by ESO, Customer has no right
to: (a) decompile, reverse engineer, disassemble, print, copy
or display the Software or otherwise reduce the Software to
a human perceivable form in whole or in part; (b) publish,
release, rent, lease, loan, sell, distribute or transfer the
Software to another person or entity; (c) reproduce the
Software for the use or benefit of anyone other than
Customer; (d) alter, modify or create derivative works based
upon the Software either in whole or in part; or (e) use or
permit the use of the Software for commercial time-sharing
arrangements or providing service bureau, data processing,
rental, or other services to any third party. The rights
granted under the provisions of this Agreement do not
constitute a sale of the Software. ESO retains all right, title,
and interest in and to the Software, including without
limitation all software used to provide the Software and all
graphics, user interfaces, logos and trademarks reproduced
through the Software, except to the limited extent set forth
in this Agreement. This Agreement does not grant
Customer any intellectual property rights in the Software or
any of its components, except to the limited extent that this
Agreement specifically sets forth Customer's rights to
access, use, or copy the Software during the Term of this
Agreement. Customer recognizes that the Software and its
components are protected by copyright and other laws.
3.4. Delivery. In the case of Licensed Software, ESO shall
provide the Licensed Software to Customer through a
reasonable system of electronic download. In the case of
SaaS, ESO shall grant Customer access to SaaS promptly
after the Effective Date.
3.5. Third -Party Software. Software may incorporate software
and other technology owned and controlled by third parties
("Third -Party Software"). ESO is licensed to sublicense
and distribute Third -Party Software. All Third -Party
Software falls under the scope of this Agreement.
Moreover, ESO neither accepts liability, nor warrants the
functionality, reliability or accuracy of Third -Party
Software, including but not limited to third -party mapping
applications.
4. HOSTING, SLA & SUPPORT SERVICES
4.1. Hosting & Management. Customer shall be solely
responsible for hosting and managing the Licensed
Software. ESO shall be responsible for hosting and
managing the SaaS.
Scheduled Downtime. In the event ESO determines that it
is necessary to intentionally interrupt the SaaS or that there
is a potential for the SaaS to be interrupted for the
performance of system maintenance (collectively,
"Scheduled Downtime"), ESO will use good -faith efforts to
notify Customer of such Scheduled Downtime at least 72
hours in advance and will ensure Scheduled Downtime
occurs during non -peak hours (midnight to 6 a.m. Central
Time). In no event shall Scheduled Downtime constitute a
failure of performance by ESO.
4.4. Support and Updates. During the Term of this Agreement,
ESO shall provide.to Customer the Support Services, in
accordance with Exhibit B, Exhibit B is incorporated herein
by reference.
FEES
5.1. Fees. In consideration of the rights granted and except in the
event there is a Third -Party Payer (as defined below),
Customer agrees to pay ESO the fees for the Software
and/or Professional Services as set forth in the Software
Schedule(s) or SOW(s) (collectively, "Fees"). Except as
otherwise provided herein, the Fees are non -cancelable and
non-refundable. Either Customer or Third -Party Payer, as
applicable, shall pay all invoices within thirty (30) days of
receipt. In the event a third -party is paying some or all of
the Fees on behalf of Customer ("Third -Party Payer"), the
Software Schedule will state that payment obligation if so,
Third -Party Payer shall be responsible for paying the Fees.
The parties agree that Customer may replace the Third -
Party Payer by submitting to ESO written notice
memorializing the change. In the event the Third -Party
Payer does not pay the Fees, ESO shall notify Customer in
writing. Upon delivery of said notice, Customer shall be
granted a thirty (30) day period during which it may, at its
sole discretion, either i) immediately terminate this
Agreement by sending written notice to ESO, in which case
Customer shall not be responsible for any unpaid Fees, or
ii) pay the unpaid Fees and continue to pay future Fees as
though Customer were the Third -Party Payer, in which case
this Agreement shall not terminate, and Customer's access
to the Software shall not be interrupted. In the event
Customer is incapable of paying the Fees due to budgetary
restrictions but wishes to continue using the Software, ESO
may, at its sole discretion, develop a payment plan with
Customer which shall be formalized in writing and signed
by both parties. Unless Customer sends notice of
termination to ESO during the aforementioned thirty (30)
day period, Customer is responsible for payment in the
event the Third -Party Payer does not pay the Fees and
Customer continues using the Software.
5.2. Uplift on Renewal. Except in the instance of Overages (as
defined below), Fees for Software, which recur annually,
ESO — MSLA x.20170519
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DocuSign Envelope ID: A3520113-D315-43FE-902F-CF5BD2385956
shall increase by three percent (3%) each year this
Agreement is in effect,
5.3. Taxes and Fees. This Agreement is exclusive of all taxes
and credit card processing fees, if applicable. Customer is
responsible for and will remit (or will reimburse ESO upon
ESO's request) all taxes of any kind, including sales, use,
duty, customs, withholding, property, value-added, and
other similar federal, state or local taxes (other than taxes
based on ESO's income) related to this Agreement.
5.4. Appropriation of Funds. If Customer is a city, county or
other government entity, the parties accept and agree that
Customer has the right to terminate the Agreement at the
end of the Customer's fiscal tern for a failure by
Customer's governing body to appropriate sufficient funds
for the next fiscal year. Notwithstanding the foregoing, this
provision shall not excuse Customer from past payment
obligations or other Fees earned and unpaid. Moreover,
Customer agrees to provide ESO reasonable documentation
evidencing such non -appropriation of funds.
5.5. Audit Rishts. ESO may regularly audit Customer's use of
the Software and charge Customer a higher annual Fee if
Customer's usage has increased beyond the tier contracted
for in the current Software Schedule or otherwise assess
additional fees (for example, Customer is uploading more
records into the Software than it has previously contracted
for) (collectively, "Overages".). ESO may invoice for
Overages immediately. Notwithstanding the foregoing, it is
solely Customer's responsibility to report Overages to ESO
in a timely manner.
6. TERM AND TERMINATION
6.1, Term. The term of this Agreement (the "Term") shall
commence on the Effective Date and continue for a period
of three years. Thereafter, the Term will renew for a
maximum of two successive one-year periods, unless either
party opts out of such renewal by providing at least sixty
days' written notice before the scheduled renewal date. The
license period or subscription period shall begin on the date
specified in the applicable Software Schedule, and this
Agreement shall automatically be extended to ensure that
the contract Term is coterminous with the subscription
period or license period, as applicable.
breach, Customer agrees to immediately remit all
unpaid Fees as set forth on the applicable Software
Schedule equal to the Fees that will become due
during the remaining Term.
6.4.2. If Customer terminates this Agreement or any
Software Schedule as a result of ESO's breach, then
to the extent that Customer bas prepaid any Fees,
ESO shall refund to Customer any prepaid Fees on a
pro -rata basis to the extent such Fees are
attributable to the period after the termination date.
6.4.3. Upon termination of this Agreement or any
Software Schedule, Customer shall cease all use of
the Software and delete, destroy or return all copies
of the Documentation and Licensed Software in its
possession or control, except as required by law.
6.4.4. Termination of this Agreement is without prejudice
to any other right or remedy of the parties and shall
not release either party from any liability (a) which
at the time of termination, has already accrued to
the other party, (b) which may accrue in respect of
any act or omission prior to termination, or (c) from
any obligation which is intended to survive
termination.
6.5. Delivery of Data. If Customer requests its data within sixty
(60) days of expiration or termination of this Agreement,
ESO will provide Customer access to Customer Data in a
searchable .pdf format within a reasonable time frame
thereafter. ESO is under no obligation to retain Customer
Data more than sixty (60) days after expiration or
termination of this Agreement.
7. REPRESENTATIONS AND WARRANTIES
7.1. Material Performance of Software. ESO warrants and
represents that the Software will materially perform in
accordance with the Documentation provided by ESO, if
any.
7.2. Warranty of Services. ESO warrants that its personnel are
adequately trained and competent to perform Professional
Services and/or Support Services and that each will be
performed in a professional and workmanlike manner.
6.2. Termination for Cause. Either party may terminate this
Agreement or any individual Software Schedule for the
73. Due Authority. Each party's execution, delivery and
other parry's material breach by providing written notice.
performance of this Agreement and each agreement or
The breaching party shall have thirty days from receipt to
instrument contemplated by this Agreement has been duly
cure such breach to the reasonable satisfaction of the non-
authorized by all necessary corporate or government action.
breaching party.
6.3. BankWLc llnsolvency. This Agreement and any applicable
Software Schedule may be terminated immediately upon the
following: (a) the institution of insolvency, receivership or
bankruptcy proceedings or any other proceedings for the
settlement of debts of the other party; (b) the making of an 8.
assignment for the benefit of creditors by the other party; or
(c) the dissolution of the other party.
6.4. Effect of Termination.
6.4.1. If this Agreement or any Software Schedule is
terminated by Customer prior to the expiration of its
then -current term, for any reason other than ESO's
ESO —MSLA v.20170519
Confidential & Proprietary
7.4. Customer Cooperation. Customer agrees to reasonably and
timely cooperate with ESO, including but not limited to
providing ESO with reasonable access to its equipment,
software, data and using current operating system(s).
DISCLAIMER OF WARRANTIES. EXCEPT AS
OTHERWISE PROVIDED IN SECTION 7, ESO HEREBY
DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, ALL IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, PERFORMANCE, SUITABILITY,
TITLE, NON -INFRINGEMENT, OR ANY IMPLIED
WARRANTY ARISING FROM STATUTE, COURSE OF
DEALING, COURSE OF PERFORMANCE, OR USAGE OF
TRADE. WITHOUT LIMITING THE GENERALITY OF THE
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DocuSign Envelope ID: A3520113-D315-43FE-9D2F-CF5BD2385956
FOREGOING: (a) ESO DOES NOT REPRESENT OR
WARRANT THAT THE SOFTWARE WILL PERFORM
WITHOUT INTERRUPTION OR ERROR; AND (b) ESO
DOES NOT REPRESENT OR WARRANT THAT THE
SOFTWARE IS SECURE FROM HACKING OR OTHER
UNAUTHORIZED INTRUSION OR THAT CUSTOMER
DATA WILL REMAIN PRIVATE OR SECURE. CUSTOMER
THEREFORE ACCEPTS THE SOFTWARE "AS -IS" AND "AS
AVAILABLE."
9. CONFIDENTLALITY
9.1. "Confidential Information" refers to the following items: (a)
any document marked "Confidential"; (b) any information
orally designated as "Confidential" at the time of disclosure,
provided the disclosing party confirms such designation in
writing within five (5) business days; (c) the Software and
Documentation, whether or not designated confidential; and
(d) any other nonpublic, sensitive information reasonably
considered a trade secret or otherwise confidential.
Notwithstanding the foregoing, Confidential Information
does not include information that: (i) is in the other party's
possession at the time of disclosure; (ii) is independently
developed without use of or reference to Confidential
Information; (iii) becomes known publicly, before or after
disclosure, other than as a result of a parry's improper
action or inaction; (iv) is approved for release in writing by
the disclosing party; (v) is required to be disclosed by law;
or (vi) PHI, which shall be governed by the Business
Associate Agreement rather than this Section.
9.2. Nondisclosure. The parties shall not use Confidential
Information for any purpose other than to fulfill the terms of
this Agreement (the "Purpose"). Each party: (a) shall ensure
that its employees or contractors are bound by
confidentiality obligations no less restrictive than those
contained herein and (b) shall not disclose Confidential
Information to any other third party without prior written
consent from the disclosing party. Without limiting the
generality of the foregoing, the receiving parry shall protect
Confidential Information with the same degree of care it
uses to protect its own confidential information of similar
nature and importance, but with no less than reasonable
care. A receiving party shall promptly notify the disclosing
party of any misuse or misappropriation of Confidential
Information ofwhich it is aware.
9.3. Disclosure of ESO's Securi Policies. Customer
acknowledges that any information provided by ESO
pertaining to ESO's security controls, policies, procedures,
audits, or other information concerning ESO's internal
security posture are considered Confidential Information
and shall he treated by Customer in accordance with the
terms and conditions of this Agreement.
9.4. Injunction. Customer agrees that breach of this Section
would cause ESO irreparable injury, for which monetary
damages would not provide adequate compensation, and
that in addition to any other remedy, ESO will be entitled to
injunctive relief against such breach or threatened breach,
without ESO proving actual damage or posting a bond or
other security.
9.5. Termination & Return. With respect to each item of
Confidential Information, the obligations of nondisclosure
will terminate three (3) years after the date of disclosure;
provided that, such obligations related to Confidential
Information constituting ESO's trade secrets shall continue
ESO —MSLA v.20170519
Confidential & Proprletary
so long as such information remains subject to trade secret
protection pursuant to applicable law. Upon termination of
this Agreement, a party shall return all copies of
Confidential Information to the other or certify, in writing,
the destruction thereof.
9.6. Retention of Rights, This Agreement does not transfer
ownership of Confidential Information or grant a license
thereto.
9.7. Open Records and Other Laws. Notwithstanding anything
in this Section to the contrary, the parties expressly
acknowledge that Confidential Information may be
disclosed if such Confidential Information is required to be
disclosed by law, a lawful public records request, or judicial
order, provided that prior to such disclosure, written notice
of such required disclosure shall be given promptly and
without unreasonable delay by the receiving party in order
to give the disclosing party the opportunity to object to the
disclosure and/or to seek a protective order. The receiving
party shall reasonably cooperate in this effort. In addition,
Customer may disclose the contents of this Agreement
solely for the purpose of completing its review and approval
processes under its local rules, if applicable.
10. EVSURANCE. Throughout the term of this Agreement, and for a
period of at least three (3) years thereafter for any insurance
written on a claims -made form, ESO shall maintain in effect the
insurance coverage described below:
10.1. Commercial general liability insurance with a minimum of
$1 trillion per occurrence and $ I million aggregate;
10.2. Commercial automobile liability insurance covering use of
all non -owned and hired automobiles with a minimum limit
of $1 trillion for bodily injury and property damage
liability;
10.3. Worker's compensation insurance and employer's liability
insurance or any alternative plan or coverage as permitted
or required by applicable law, with a minimum employer's
liability Limit of $] million each accident or disease; and
10.4. Computer processor/computer professional liability
insurance ("Technology Errors and Omissions") covering
the liability for financial loss due to error, omission or
negligence of ESO, and Privacy and Network Security
insurance ("Cyber") covering losses arising from a
disclosure of confidential information, with a combined
aggregate amount of $3 million.
10.5. The insurance provided in 10.1 and 10.2 shall be endorsed
to name the Customer as an Additionat Insured.
10.6. The insurance provided in 10. 1, 10.2, and 10.3 shall provide
a Waiver of Subrogation in favor of the Customer.
11. INDEMNIFICATION
A. Definitions:
i. "Indemnified Claims" shall exclude claims, demands,
suits, causes of action, judgments and liability between
ESO and Customer, but shall include any and all third -
party claims, demands, suits, causes of action,
judgments and liability of every character, type or
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description, including all reasonable costs and expenses
of litigation, mediation or other alternate dispute
resolution mechanism, including attorney and other
professional fees for (a) damage to or loss of the
property of any person (including, but not limited to,
the Customer, ESO, their respective agents, officers,
employees and subcontractors; the officers, agents, and
employees of such subcontractors; and third parties),
and/or (b) death, bodily injury, illness, disease,
worker's compensation, or loss of services (including,
but not limited to, the agents, officers and employees of
the Customer, ESO, ESO's subcontractors, and third
parties).
B. SUBJECT TO THE LIMITATIONS OF LIABILITY
SET OUT IN SECTION 12 OF THE AGREEMENT,
ESO SHALL DEFEND (AT THE OPTION OF THE
CUSTOMER), INDEMNIFY, AND HOLD
CUSTOMER, ITS SUCCESSORS, ASSIGNS,
OFFICERS, EMPLOYEES AND ELECTED
OFFICIALS HARMLESS FROM AND AGAINST
ALL INDEMNIFIED CLAIMS DIRECTLY
RESULTING FROM THE FAULT OF ESO, ORESO' S
AGENTS, EMPLOYEES OR SUBCONTRACTORS,
IN THE PERFORMANCE OF ESO'S OBLIGATIONS
UNDER THE AGREEMENT, EXCEPT THAT ESO
WILL HAVE NO LIABILITY TO THE CUSTOMER
TO THE EXTENT OF ANY COMPARATIVE
NEGLIGENCE OF ANY INDEMNIFIED PARTY.
THIS OBLIGATION TO DEFEND, INDEMNIFY,
AND HOLD HARMLESS DOES NOT EXTEND TO
PROFESSIONAL LIABILITY CLAIMS ARISING
FROM PROFESSIONAL ERRORS AND
OMISSIONS. ESO ALSO AGREES TO REIMBURSE
THE INDEMNIFIED PARTIES FOR ALL COSTS,
EXPENSES AND ATTORNEYS' FEES INCURRED
IF THE INDEMNIFIED PARTIES PREVAIL ON ANY
CLAIM AGAINST ESO FOR ESTABLISHMENT OF
ESO'S INDEMNITY OBLIGATIONS. NOTHING
HEREIN SHALL BE DEEMED TO LIMIT THE
RIGHTS OF THE CUSTOMER OR ESO
(INCLUDING, BUT NOT LIMITED TO, THE RIGHT
TO SEEK CONTRIBUTION) AGAINST ANY THIRD
PARTY WHO MAY BE LIABLE FOR AN
INDEMNIFIED CLAIM.
C. THIS SECTION I1 SHALL SURVIVE
EXPIRATION OR TERMINATION OF THE
AGREEMENT.
12. LIMITATION OF LIABILITY
12.1. LIMITATION OF DAMAGES, UNDER NO
CIRCUMSTANCES SHALL ESQ OR CUSTOMER BE
LIABLE TO EACH OTHER FOR ANY
CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE
OR INCIDENTAL DAMAGES, INCLUDING CLAIMS
FOR DAMAGES FOR LOST PROFITS, GOODWILL,
USE OF MONEY, INTERRUPTED OR IMPAIRED USE
OF THE SOFTWARE, AVAILABILITY OF DATA,
STOPPAGE OF WORK OR IMPAIRMENT OF OTHER
ASSETS.
12.2. LIMITATION OF LIABILITY AS TO CUSTOMER.
TO THE EXTENT PERMITTED BY LAW, WITH THE
EXCEPTION OF SECTION 12.3, ESO'S MAXIMUM
AGGREGATE LIABILITY FOR ALL CLAIMS OF
LIABILITY TO CUSTOMER ARISING OUT OF OR IN
ESO —MSLA v.20170519
Confidential & Proprietary
CONNECTION WITH THIS AGREEMENT, SHALL
NOT EXCEED THE GREATER OF SIXTY -THOUSAND
DOLLARS OR THE FEES PAID BY CUSTOMER (OR
ON BEHALF OF CUSTOMER IN THE CASE OF A
THIRD -PARTY PAYER) UNDER THE APPLICABLE
SOFTWARE SCHEDULE OR SOW GIVING RISE TO
THE CLAIM WITHIN THE PRECEDING 24 -MONTH
PERIOD,
12.3. EXCEPTION TO ESO'S LIMITATION OF
LIABILITY AS TO CUSTOMER TO THE EXTENT
PERMITTED BYLAW, ESO'S LIABILITY FOR
CUSTOMER'S CLAIMS FOR WHICH INSURANCE
COVERAGE IS PROVIDED BY SECTION 10 SHALL
NOT EXCEED THE INSURANCE LIMITS IN SECTION
10 OF THE AGREEMENT: FOR CLAIMS FOR WHICH
INSURANCE COVERAGE IS NOT PROVIDED, ESO'S
MAXIMUM AGGREGATE LIABILITY SHALL BE
53,000,000.00.
12.4. EXCEPTIONS TO ESO'S LIMITATION OF
LIA131LITY TO T HHD PARTIES.
ESO'S LIABILITY FOR THIRD PARTY CLAIMS
INVOLVING ESO'S INDEMNIFICATION
OBLIGATIONS ARISING OUT OF SECTION 11 OF
THE AGREEMENT SHALL BE LIMITED TO THE
LESSER OF THE INSURANCE LIMITS IN SECTION 10
OF THE AGREEMENT, IF APPLICABLE, OR THE
CUSTOMER'S APPLICABLE TORT LIABILITY SET
OUT IN TEXAS CIVIL PRACTICE AND REMEDIES
CODE CHAPTER 101, IF APPLICABLE. FOR CLAIMS
FOR WHICH NEITHER APPLIES, ESO'S MAXIMUM
AGGREGATE LIABILITY SHALL BE $3,000,000.00
12.5. THIS SECTION 12 SHALL SURVIVE EXPIRATION OR
TERMINATION OF THE AGREEMENT.
13. CUSTOMER DATA & PRIVACY
13.1. Ownership of Data & Reports. As between ESO and
Customer, all Customer Data shall be owned by Customer.
Without limiting the foregoing, ESO will own all right, title
and interest in all Intellectual Property in any aggregated
and de -identified reports, summaries, compilations, analysis
or other information made available through ESO's
Reporting Services. If subscribed to by Customer, ESO
grants to Customer a limited, non-exclusive license to use
its Reporting Services for Customer's internal purposes
only during the Term of this Agreement. No other third
.party shall rely on ESO's Reporting Services or the contents
thereof. ESO disclaims all liability for any damages related
thereto. Customer acknowledges and agrees that any such
license expires upon the expiration or termination of the
applicable Software Schedule granting a license to ESO's
Reporting Services.
13.2. Use of Customer Data. Unless it receives Customer's prior
written consent, ESO: (a) shall not access, process, or
otherwise use Customer Data; and (b) shall not intentionally
grant any third -party access to Customer Data, including
without limitation ESO's other customers, except
subcontractors that are subject to a reasonable nondisclosure
agreement or authorized participants in the case of
Interoperability Software. Notwithstanding the foregoing,
ESO may use and disclose Customer Data to fulfill its
obligations under this Agreement or as required by
applicable law or by proper legal or governmental authority.
ESO shall give Customer prompt notice of any such legal or
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governmental demand and reasonably cooperate with
Customer in any effort to seek a protective order or
otherwise to contest such required disclosure, at Customer's
expense.
13.3. Anonvmized Data. Notwithstanding any provision herein,
ESQ may use, reproduce, license, or otherwise exploit
Anonymized Data; provided that Anonymized Data does
not contain and is not PHI. ("Anonymized Data" refers to
Customer Data with the following removed: personally
identifiable information and the names and addresses of
Customer and any of its Users and/or Customer's clients.)
13.4. Risk of Exposure. Customer recognizes and agrees that
hosting data online involves risks of unauthorized
disclosure.. Customer has sole responsibility for obtaining,
maintaining, and securing its connections to the Internet.
ESO makes no representations to Customer regarding the
reliability, performance or security of any network or
provider.
14. FEEDBACK RIGHTS & WORK PRODUCT
14.1. Feedback Rights. ESO does not agree to treat as
confidential any Feedback that Customer provides to ESO.
Nothing in this Agreement will restrict ESO's right to use,
profit from, disclose, publish, keep secret, or otherwise
exploit Feedback, without compensation or crediting
Customer. Feedback will not constitute Confidential
Information, even if it would otherwise qualify as such
pursuant to Section 9 (Confidential Information).
14.2. Work Product Ownership. In the event Customer hires ESO
to perform Professional Services, ESO alone shall hold all
right, title, and interest to all proprietary and intellectual
property rights of the Deliverables (including, without
limitation, patents, trade secrets, copyrights, and
trademarks), as well as title to any copy of software made
by or for Customer (if applicable). Customer hereby
explicitly acknowledges and agrees that nothing in this
Agreement or a separate SOW gives the Customer any
right, title, or interest to the intellectual property or
proprietary know-how of the Deliverables.
15. GOVERNMENT PROVISIONS
15.1. Compliance with Laws. Both parties shall comply with and
give all notices required by all applicable federal, state and
local laws, ordinances, rules, regulations and lawful orders
of any public authority bearing on the performance of this
Agreement.
15.2. Business Associate Addendum. The parties agree to the
terms of the Business Associate Addendum attached hereto
as Exhibit C and incorporated herein by reference.
15.3. Equal Opportunity. The parties shall abide by the
requirements of 4I CFR 60-1.4(a), 60-300.5(a) and 60-
741.5(a), and the posting requirements of 29 CFR Part 471,
appendix A to subpart A, if applicable. These regulations
prohibit discrimination against qualified individuals based
on their status as protected veterans or individuals with
disabilities, and prohibit discrimination against all
individuals based on their race, color, religion, sex, sexual
orientation, gender identity or national origin.
ESO — MSLA v.20170519
Confidential & Proprietary
15.4. Excluded Parties List. ESO agrees to immediately report to
Customer if an employee or contractor is listed by a federal
agency as debarred, excluded or otherwise ineligible for
participation in federally funded health care programs.
16. PHI ACCURACY & COMPLETENESS
16.1. ESO provides the Software to allow Customer (and its
respective Users) to enter, document, and disclose Customer
Data, and as such, ESO gives no representations or
guarantees about the accuracy or completeness of Customer
Data (including PHI) entered, uploaded or disclosed
through the Software.
16.2. Customer is solely responsible for any decisions or actions
taken involving patient care or patient care management,
whether those decisions or actions were made or taken
using information received through the Software.
17. MISCELLANEOUS
17.1. Independent Contractors. The parties are independent
contractors. Neither party is the agent of the other, and
neither may make commitments on the other's behalf. The
parties agree that no ESO employee or contractor is or will
be considered an employee of Customer.
17.2. Notices. Notices provided under this Agreement must be in
writing and delivered by (a) certified mail, return receipt
requested to a party's principal place of business as forth in
the recitals on page 1 of this Agreement, (b) hand delivered,
(e) facsimile with receipt of a "Transmission Confirmed"
acknowledgment, (d) e-mail, or (e) delivery by a reputable
overnight carrier service. In the case of delivery by
facsimile or e-mail, the notice must be followed by a copy
of the notice being delivered by a means provided in (a), (b)
or (e). The notice will be deemed given on the day the
notice is received.
17.3. Merger Clause. In entering into this Agreement, neither
party is relying upon any representations or statements of
the other that are not fully expressed in this Agreement;
rather each party is relying on its own judgment and due
diligence and expressly disclaims reliance upon any
representations or statement not expressly set forth in this
Agreement. In the event the Customer issues a purchase
order, letter or any other document addressing the Software
or Services to be provided and performed pursuant to this
Agreement, it is hereby specifically agreed and understood
that any such writing is for the Customer's internal
purposes only, and that any terms, provisions, and
conditions contained therein shall in no way modify this
Agreement.
17.4. Severability. To the extent permitted by applicable law, the
parties hereby waive any provision of law that would render
any clause of this Agreement invalid or otherwise
unenforceable in any respect. If a provision of this
Agreement is held to be invalid or otherwise unenforceable,
such provision will be interpreted to fulfill its intended
purpose to the maximum extent permitted by applicable
law, and the remaining provisions of this Agreement will
continue in full force and effect.
17.5. Assignment & Successors. Neither party may assign,
subcontract, delegate or otherwise transfer this Agreement
or any of its rights or obligations hereunder, nor may it
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contract with third parties to perform any of its obligations
hereunder except as contemplated in this Agreement,
without the other party's prior written consent. Except that
either party may, without the prior consent of the other,
assign all its rights under this Agreement to (i) a purchaser
of all or substantially all assets related to this Agreement, or
(ii) a third party participating in a merger, acquisition, sale
of assets or other corporate reorganization in which either
party is participating (collectively, a "Change in Control');
provided however, that the non -assigning party is given
notice of the Change in Control.
17.6. Modifications and Amendments. This Agreement may not
be amended except through a written agreement signed by
authorized representatives of each party.
17.7. Force Majeure. No delay, failure, or default, other than a
failure to pay Fees when due, will constitute a breach of this
Agreement to the extent caused by acts of war, terrorism,
hurricanes, earthquakes, other acts of God or of nature,
strikes or other labor disputes, riots or other acts of civil
disorder, embargoes, or other causes beyond the performing
party's reasonable control (collectively, "Force Majeure),
In such event, however, the delayed parry must promptly
provide the other party notice of the Force Majeure. The
delayed party's time for performance will be excused for
the duration of the Force Majeure, but if the event last
longer than thirty (30) days, the other party may
immediately terminate the applicable Software Schedule.
17.8. Marketing. Customer hereby grants ESO a license to
include Customer's primary logo in any customer list or
press release announcing this.Agreement; provided ESO
first submits each such press release or customer list to
Customer and receives written approval, which approval
shall not be unreasonably withheld. Goodwill associated
with the logo inures solely to Customer, and ESO shall take
no action to damage the goodwill associated with the logo
or with Customer.
17.9. Waiver & Breach. Neither party will be deemed to have
waived any of its rights under this Agreement unless it is an
explicit written waiver made by an authorized
representative. No waiver of a breach of this Agreement
will constitute a waiver of any other breach of this
Agreement.
17.10. Survival of Terms. Unless otherwise stated, all of ESO's
and Customer's respective obligations, representations and
warranties under this Agreement which are not, by the
expressed terms of this Agreement, fully to be performed
while this Agreement is in effect shall survive the
termination of this Agreement,
17.11. Ambiguous Terms. This Agreement will not be construed
against any party by reason of its preparation.
17.12. Governing Law. This Agreement, any related Addenda, and
any CLAIM, DISPUTE, OR CONTROVERSY
(WHETHER IN CONTRACT, TORT, OR OTHERWISE,
INCLUDING STATUTORY, CONSUMER
PROTECTION, COMMON LAW, INTENTIONAL TORT
AND EQUITABLE CLAIMS) BETWEEN CUSTOMER
AND ESO, including their affiliates, contractors, and
agents, and each of their respective employees, directors,
and officers (a "Dispute") will be governed by the laws of
the State of Texas, without regard to conflicts of law.
Notwithstanding the foregoing, in the event Customer is a
ESQ — MSLA v.20170519
Confidential & Proprietary
U.S. city, county, municipality or other U.S. governmental
entity, then any Dispute will be governed by the law of state
where Customer is located, without regard to its conflicts of
law. The UN Convention for the International Sale of
Goods and the Uniform Computer Information Transactions
Act will not apply. In any Dispute, each party will bear its
own attorneys' fees and costs and expressly waives any
statutory right to attorneys' fees under § 38.001 of the
Texas Civil Practices and Remedies Code.
17.13. Venue. The parties agree that any Dispute shall be brought
exclusively in the state or federal courts located in Denton
County, Texas. The parties agree to submit to the personal
jurisdiction of such courts. Notwithstanding the foregoing,
in the event Customer is a U.S. city, county, municipality or
other U.S. governmental entity, then any Dispute shall be
brought exclusively in the state or federal courts located in
the county where Customer is located.
17.14. Intentionally deleted.
17.15. No Class Actions. NEITHER PARTY SHALL BE
ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY
OR AGAINST THE OTHER CUSTOMERS, OR PURSUE
ANY CLAIM AS A REPRESENTATIVE OR CLASS
ACTION OR IN A PRIVATE ATTORNEY GENERAL
CAPACITY.
17.16. Limitation Period, NEITHER PARTY, shall be liable for
any claim brought more than 2 years after the cause of
action for such claim first arose.
17.17. Dispute Resolution. Customer and ESO will attempt to
resolve any Dispute through negotiation or by utilizing a
mediator agreed to by the parties, rather than through
litigation, Negotiations and mediations will be treated as
confidential. Ifthe parties are unable to reach a resolution
within thirty (30) days of notice of the Dispute to the other
party, the parties may pursue all other courses of action
available at.law or in equity.
17.18. Technology Export. Customer shall not: (a) permit any third
party to access or use the Software in violation of any U.S.
law or regulation; or (b) export any software provided by
ESO or otherwise remove it from the United States except
in compliance with all applicable U.S. laws and regulations.
Without limiting the generality of the foregoing, Customer
shall not permit any third party to access or use the
Software in, or export such software to, a country subject to
a United States embargo (as of the Effective Date - Cuba,
Iran, North Korea, Sudan, and Syria).
17.19. Order of Precedence. In the event of any conflict between
this Agreement, Addenda or other attachments incorporated
herein, the following order of precedence will govcrn: (1)
the General Terms and Conditions; (2) any Business
Associate Agreement; (3) the applicable Software Schedule
or SOW, with most recent Software Schedule or SOW
taking precedence over earlier ones; and (4) any ESO policy
posted online, including without limitation its privacy
policy. No amendments incorporated into this Agreement
after execution of the General Terms and Conditions will
amend such General Terms and Conditions unless it
specifically states its intent to do so and cites the section or
sections amended.
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17.20. Counterparts. This Agreement may be executed in one or
more counterparts. Each counterpart will be an original, and
all such counterparts will constitute a single instrument.
ESO —MSLA v.20170519
Confidential & Proprietary
17.21. Signatures. Electronic signatures on this Agreement or on
any Addendum (or copies of signatures sent via electronic
means) are the equivalent of handwritten signatures.
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DocuSign Envelope ID: A3520113-D31543FE-9D2F-CF5BD2385956
IN WITNESS WHEREOF, the parties have executed this Agreement as ofthe Effective Date.
ESO Solutions, Inc.
Docu ftnad by:
1Q1� dw
,YBF09 6410...
Courtney Johnson
[Printed Name]
CFO
[Title]
ESO — MSLA v.20170519
Confidential & Proprietary
Customer: City of Denton, Texas
Docuftned by:
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5+70423...
SARA HENSLEY
[Printed Name]
INTERIM CITY MANAGER
[Title]
ATTEST:
ROSA RIOS, CITY SECRETARY
Docuftned by:
BY Rein R:oa
APPROVED AS TO LEGAL FORM:
CATHERINE CLIFTON, INTERIM CITY
ATTORNEY
Docugfgned by:
BY
—48076831 B4AA438..,
THIS AGREEMENT HAS BEEN BOTH
REVIEWED AND APPROVED
as to financial and operational obligations
and business terms.
Dacugigned by:
HdV4 Kenneth Hedges
56304c3... Printed Name
Fire chief
Title
Fire
Department
Page 9
DocuSign Envelope ID: A3520113-D315-43FE-9D2F-CF5BD2385956
EXHIBIT A-1
SAAS SOFTWARE SCHEDULE
(Applications - ESO EHR, ESO Fre, ESO PM. FIREHOUSE Cloud, IFC Codes, EMS1 Academy, FireRescuel Academy, Staff Scheduling. Assets,
Inventory. Checklist)
1. The SaaS subscription term shall begin 15 calendar days after the Effective Date ("SaaS Subscription Start Date"). Customer shall be deemed
to have accepted the SaaS on the SaaS Subscription Start Date. The parties will make reasonable efforts to ensure that Customer is able to use
the SaaS as contemplated as quickly as possible, but in no event will the SaaS Subscription Start Date be modified for implementation delays.
2. The following SaaS may be ordered under this Exhibit:
2.1. ESO Electronic Health Record ("EHR") is a SaaS software application for prehospital patient documentation
(http://www.eso.com/software/ehrl.
2.2. ESO Personnel Management ("PM") is a SaaS software application for tracking personnel records, training courses and education history
(http://www.eso.com/software/personnel-managemen ).
2.3. ESO Fire is a SaaS software application for NFIRS reporting (httpl/www.eso.com/software/fire).
3. The following Third -Party Data and/or Software maybe ordered under this Exhibit: 2018 International Fire Code, 2015 International Fire Code,
2012 International Fire Code, Education (see section 3.5).
4. Third -Party Payer is responsible for the following products and Fees:
N/A
5. Customer hereby agrees to timely pay for the following products according to the schedule below:
1
t
I Patient Care Reporting Solution (193 users, 8 stations, 40 vehicles; EHR and HDE Connection)
Recurring
1
f
EA
$21,213.00
2
Fire Incident Reports (193 users, 8 stations, 40 vehicles; Fire Incidents, Hydrants, Properties,
Inspections)
Recurring
1
EA
$14,864.40
3
Personnel Management (193 users, 8 stations, 40 vehicles)
Recurring
1
EA
$5,035.50
4
Asset Management (193 users, 8 stations, 40 vehicles; Assets and Checklists)
Recurring
1
EA
$9,441.00
5
EMS Fire Rescue Education Database Training Tracking (193 users, 8 stations, 40 vehicles)
Recurring
1
EA
$13,722.30
6
Daily Non -Response Operations Activities Tracking (193 users, 8 stations, 40 vehicles; Activities)
Recurring
1
EA
$1,449.00
7
Staff ing/Scheduling/Attendance Tracking (193 users, 8 stations, 40 vehicles)
Recurring
1
EA
$8,995.50
8
Implementation, training, support services (193 users, 8 stations, 40 vehicles)
One-time
1
EA
$0.00
9
1 Cost for Increase of Services (additional personnel, stations, apparatuses)
I Recurring
1 1
EA
$0.00
Total
$74,720.70
6. All the Fees above will be invoiced by ESO as follows:
6.1. Training and Training Travel Fees shall be invoiced on the Effective Date.
6.2. During the first year, 1.00% of the remaining Fees shall be invoiced on the SaaS Subscription Start Date,
6.3. During the second year and any renewal years thereafter, 100% of the recurring Fees shall be due on the anniversary of the SaaS
Subscription Start Date.
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Confidential & Proprietary Page 10
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EXHIBIT A-6
NARCBOX HARDWARE AND SOFTWARE SCHEDULE
(AAppli�cations - NarcBox)
1. The NarcBox subscription term shall begin upon the date Customer receives the NarcBox hardware ("NarcBox Subscription Start
Date"}. Customer shall be deemed to have accepted NarcBox and the accompanying software on the NarcBox Subscription Start
Date. ESO is not obligated to provide delivery for any NarcBox until after Customer pays the initial invoice sent under this Schedule or
makes other payment arrangements acceptable to ESO (including but not limited to a valid Purchase Order).
2. Customer may return defective products for a refund within 45 days of the NarcBox Subscription Start Date to a location designated
by ESO.
3. Third -Parry Payer is responsible forthe following products and Fees:
N/A
4. Customer hereby agrees to timely pay for the following products according to the schedule below:
5. All the Fees above will be invoiced by ESO as follows:
5.1. The Fees shall be invoiced on the Effective Date of the Agreement ("NarcBox Invoice Date').
5.2. For year two and thereafter, the recurring Fees shall be invoiced on the anniversary of the NarcBox Invoice Date.
ESO - MSLA v.20170519
Confidential &Proprietary page 11
DecuSign Envelope ID: A3520113-D315-43FE-9D2F-CF5BD2385956
EXHIBIT B
SUPPORT SERVICES ADDENDUM
1. DEFIMTIONS. Capitalized terms not defined below shall have the same meaning as in the General Terms & Conditions.
I.I. "Enhancement" means a modification, addition or new release of the Software that when added to the Software, materially changes
its utility, efficiency, functional capability or application.
1.2. "E-mail Support" means ability to make requests for technical support assistance by e-mail at any time concerning the use of the
then -current release of Software.
1.3. "Error" means an error in the Software, which significantly degrades performance of such Software as compared to ESO's then -
published Documentation.
1.4. "Error Correction" means the use of reasonable commercial efforts to correct Errors.
1.5. "Fix" means the repair or replacement of object code for the Software or Documentation to remedy an Error.
1.6. "Initial Response" means the first contact by a Support Representative after the incident has been logged and a ticket generated. This
may include an automated email response depending on when the incident is first communicated.
1.7. "Management Escalation" means, if the initial Workaround or Fix does not resolve the Error, notification of management that such
Error(s) have been reported and of steps being taken to correct such Error(s).
1. S, "Severity 1 Error" means an Error which renders the Software completely inoperative (e.g. a User cannot access the Software due to
unscheduled downtime or an Outage).
1.9. "Severity 2 Error" means an Error in which Software is still operable; however, one or more significant features or functionality are
unavailable (e.g. a User cannot access a core component of the Software).
1.1. "Severity 3 Error" means any other error that does not prevent a User from accessing a significant feature of the Software (e.g. User
is experiencing latency in reports).
1,2. "Severity 4 Error" means any error related to Documentation or a Customer Enhancement request.
1.3. "Status Update" means if the initial Workaround or Fix cannot resolve the Error, notification of the Customer regarding the progress
of the Workaround or Fix.
1.4. "Online Support" means information available through ESO's website (www.esosolutions.com), including frequently asked
questions and bug reporting via Live Chat.
1.5. "Support Representative" shall be ESO employee(s) or agent(s) designated to receive Error notifications from Customer, which
Customer's Administrator has been unable to resolve.
1.6. "Update" means an update or revision to Software, typically for Error Correction.
1.7. "Upgrade" means a new version or release of Software or a particular component of Software, which improves the functionality or
which adds functional capabilities to the Software and is not included in an Update. Upgrades may include Enhancements.
1.8. "Workaround" means a change in the procedures followed or data supplied by Customer to avoid an Error without substantially
impairing Customer's use of the Software.
2. SUPPORT SERVICES.
2.1. Customer will provide at least one administrative employee (the "Administrator" or "Administrators") who will handle all requests
for first -level support from Customer's employees with respect to the Software. Such support is intended to be the "front line" for
support and information about the Software to Customer's Users. ESO will provide training, documentation, and materials to the
Administrator to enable the Administrator to provide technical support to Customer's Users. The Administrator will notify a
Support Representative of any Errors that the Administrator cannot resolve and assist ESO in information gathering.
2.2. ESO will provide Support Services consisting of (a) Error Correction(s); Enhancements, Updates and Upgrades that ESO, in its
discretion, makes generally available to its customers without additional charge; and (c) E-mail Support, telephone support, and
Online Support. ESO may use multiple forms of communication for purposes of submitting periodic status reports to Customer,
ESO — MSLA v.20170519
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including but not limited to, messages in the Software, messages appearing upon login to the Software or other means of
broadcasting Status Update(s) to multiple customers affected by the same Error, such as a customer portal.
2.3. ESO's support desk will be staffed with competent technical consultants who are trained in and thoroughly familiar with the
Software and with Customer's applicable configuration. Telephone support and all communications will be delivered in intelligible
English.
2.4. Normal business hours for ESO's support desk are Monday through Friday 7:00 am to 7:00 pm CT. Customer will receive a call back
from a Support Representative after-hours for a Severity 1 Error,
2.5. ESO will provide responses to a technology and/or security assessment of reasonable detail (a "Tech Assessment") upon request
prior to (or in connection with) implementation. ESO will provide responses to any subsequent Tech Assessments provided that
Customer compensates ESQ at its then -current and standard consulting rates for all work performed in connection with such Tech
Assessments.
3. ERROR PRIORITY LEVELS. Customer will report all Errors to ESO via e-mail (supportResosolutions.com) or by telephone (866-766-
9471, option #3). ESO shall exercise commercially reasonable efforts to correct any Error reported by Customer in accordance with the
priority level reasonably assigned to such Error by ESO.
3.1. Severity I Error. ESO shall (i) continence Error Correction promptly; (ii) provide an Initial Response within four hours; (iii) initiate
Management Escalation promptly; and (iv) provide Customer with a Status Update within four hours if ESO cannot resolve the Error
within four hours.
3.2. Severity 2 Error. ESO shall (i) commence Error Correction promptly; (ii) provide an Initial Response within eight hours; (iii) initiate
Management Escalation within forty-eight hours if unresolved; and (iv) provide Customer with a Status Update within forty-eight
hours if ESO cannot resolve the Error within forty-eight hours.
3.3. Severity 3 Error. ESO shall (i) commence Error Correction promptly; (ii) provide an Initial Response within three business days; and
(iii) provide Customer with a Status Update within seven calendar days if ESO cannot resolve the Error within seven calendar days.
3.4. Severity 4 Error. ESO shall (i) provide an Initial Response within seven calendar days.
4. CONSULTING SERVICES. If ESO reasonably believes that a problem reported by Customer is not due to an Error in the Software, ESO
will so notify Customer. At that time, Customer may request ESO to proceed with a root cause analysis at Customer's expense as set forth
herein or in a separate SOW. If ESO agrees to perform the investigation on behalf of Customer, then ESO's then -current and standard
consulting rates will apply for all work performed in connection with such analysis, plus reasonable related expenses incurred. For the
avoidance of doubt, Consulting Services will include customized report writing by ESO on behalf of Customer.
5, EXCLUSIONS,
5.1. ESO shall have no obligation to perform Error Corrections or otherwise provide support for: (i) Customer's repairs, maintenance or
modifications to the Software (if permitted); (ii) Customer's misapplication or unauthorized use of the Software; (iii) altered or
damaged Software not caused by ESO; (iv) any third -party software; (v) hardware issues; (vi) Customer's breach of the Agreement;
and (vii) any other causes beyond the ESO's reasonable control.
5.2. ESO shall have no liability for any changes in Customer's hardware or software systems that may be necessary to use the Software
due to a Workaround or Fix.
5.3. ESO isnot responsible for any Error Correction unless ESO can replicate such Error on its own software and hardware or through
remote access to Customer's software and hardware.
5.4. Customer is solely responsible for its selection of hardware, and ESO shall not be responsible the performance of such hardware even
if ESO makes recommendations regarding the same.
MISCELLANEOUS. The parties acknowledge that from time -to -time ESO may update its support processes specifically addressed in this
Exhibit and may do so by posting such updates to ESO's website or otherwise notifying Customer of such updates. Customer will accept
updates to ESO's support procedures and any other terms in this Exhibit; provided however, that they do not materially decrease the level of
Support Services that Customer will receive from ESO. T14ESE TERMS AND CONDITIONS DO NOT CONSTITUTE A PRODUCT
WARRANTY. THIS EXHIBIT IS AN ADDITIONAL PART Of THE AGREEMENT AND DOES NOT CHANGE OR SUPERSEDE
ANY TERM OF THE AGREEMENT EXCEPT TO THE EXTENT UNAMBIGUOUSLY CONTRARY THERETO.
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EXHIBIT C
H PAA BUSINESS ASSOCIATE ADDENDUM
Customer and ESO Solutions, Inc. ("Business Associate") agree that (1) this HIPAA Business Associate Addendum is entered into for
the benefit of Customer, which is a covered entity under the Privacy Standards ("Covered Entity").
Pursuant to the Agreement, Business Associate may perform functions or activities involving the use and/or disclosure of PHI on
behalf of the Covered Entity, and therefore, Business Associate may function as a business associate. Business Associate, therefore, agrees to the
following terms and conditions set forth in this HIPAA Business Associate Addendum ("Addendum").
I. Scone, This Addendum applies to and is hereby automatically incorporated into all present and future agreements and relationships,
whether written, oral or implied, between Covered Entity and Business Associate, pursuant to which PHI is created, maintained, received or
transmitted by Business Associate from or on behalf of Covered Entity in any form or medium whatsoever -
2. Definitions. For purposes of this Addendum, the terms used herein, unless otherwise defined, shall have the same meanings as used in the
Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), or the Health Information Technology for Economic and Clinical
Health Act ("HITECH"), and any amendments or implementing regulations, (collectively "HIPAA Rules").
3. Compliance with Applicable Law. The parties acknowledge and agree that, beginning with the relevant effective date, Business Associate
shall comply with its obligations under this Addendum and with all obligations of a business associate under HIPAA, HITECH, the HIPAA
Rules, and other applicable laws and regulations, as they exist at the time this Addendum is executed and as they are amended, for so long
as this Addendum is in place.
4. Permissible Use and Disclosure of PHI. Business Associate may use and disclose PHI as necessary to carry out its duties to a Covered
Entity pursuant to the terms of the Agreement and as required by law. Business Associate may also use and disclose PHI (i) for its own
proper management and administration, and (ii) to carry out its legal responsibilities. If Business Associate discloses Protected Health
Information to a third patty for either above reason, prior to making any such disclosure, Business Associate must obtain. (i) reasonable
assurances from the receiving party that such PHI will be held confidential and be disclosed only as required by law or for the purposes for
which it was disclosed to such receiving parry; and (ii) an agreement from such receiving party to immediately notify Business Associate of
any known breaches of the confidentiality of the PHI.
5. Limitations on Use and Disclosure of PHI. Business Associate shall not, and shall ensure that its directors, officers, employees,
subcontractors, and agents do not, use or disclose PHI in any manner that is not permitted by the Agreement or that would violate Subpart E
of 45 C.F.R. 164 ("Privacy Rule") if done by a Covered Entity. All uses and disclosures of, and requests by, Business Associate for PHI are
subject to the minimum necessary rule of the Privacy Rule.
6. Required Safeguards to Protect PHI. Business Associate shall use appropriate safeguards, and comply with Subpart C of 45 C.F.R. Part 164
("Security Rule") with respect to electronic PHI, to prevent the use or disclosure of PHI other than pursuant to the terms and conditions of
this Addendum.
7. Reporting to Covered Entity. Business Associate shall report to the affected Covered Entity without unreasonable delay: (a) any use or
disclosure of PHI not provided for by the Agreement of which it becomes aware; (b) any breach of unsecured PHI in accordance with 45
C.F.R. Subpart D of 45 C.F.R. 164 ("Breach Notification Rule"); and (c) any security incident of which it becomes aware. With regard to
Security Incidents caused by or occurring to Business Associate, Business Associate shall cooperate with the Covered Entity's investigation,
analysis, notification and mitigation activities, and except for Security Incidents caused by Covered Entity, shall be responsible for
reasonable costs incurred by the Covered Entity for those activities. Notwithstanding the foregoing, Covered Entity acknowledges and shall
be deemed to have received advanced notice from Business Associate that there are routine occurrences of: (i) unsuccessful attempts to
penetrate computer networks or services maintained by Business Associate; and (ii) immaterial incidents such as "pinging" or "denial of
services" attacks.
8. Mitigation of Harmful Effects. Business Associate agrees to mitigate, to the extent practicable, any harmful effect of a use or disclosure of
PHI by Business Associate in violation of the requirements of the Agreement, including, but not limited to, compliance with any state law
or contractual data breach requirements.
9. Aereements by Third Parties. Business Associate shall enter into an agreement with any subcontractor of Business Associate that creates,
receives, maintains or transmits PHI on behalf of Business Associate. Pursuant to such agreement, the subcontractor shall agree to be bound
by the same or greater restrictions, conditions, and requirements that apply to Business Associate under this Addendum with respect to such
PHI.
10. Access to PHI. Within five (5) business days of a request by a Covered Entity for access to PHI about an individual contained in a
Designated Record Set, Business Associate shall make available to the Covered Entity such PHI for so long as such information is
maintained by Business Associate in the Designated Record Set, as required by 45 C.F.A. 164.524. In the event any individual delivers
directly to Business Associate a request for access to PHI, Business Associate shall within five (5) business days forward such request to the
Covered Entity,
11. Amendment of PHI. Within five (5) business days of receipt of a request from a Covered Entity for the amendment of an individual's PHI or
a record regarding an individual contained in a Designated Record Set (for so long as the PHI is maintained in the Designated Record Set),
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Business Associate shall provide such information to the Covered Entity for amendment and incorporate any such amendments in the PHI
as required by 45 C.F.R. 164.526. In the event any individual delivers directly to Business Associate a request for amendment to PHI,
Business Associate shall within five (5) business days forward such request to the Covered Entity.
12. Documentation of Disclosures. Business Associate agrees to document disclosures of PHI and information related to such disclosures as
would be required for a Covered Entity to respond to a request by an individual for an accounting of disclosures of PHI in accordance with
45 C.F.R. 164.528 and HITECH.
13. Accounting of Diselosures. Within five (5) business days of notice by a Covered Entity to Business Associate that it has received a request
for an accounting of disclosures of PHI, Business Associate shall make available to a Covered Entity information to permit the Covered
Entity to respond to the request for an accounting of disclosures of PHI, as required by 45 C.F.R. 164.528 and HITECH.
14, Other Obligations, To the extent that Business Associate is to carry out one or more of a Covered Entity's obligations under the Privacy
Rule, Business Associate shall comply with such requirements that apply to the Covered Entity in the performance of such obligations.
15. Judicial and Administrative Proceedings. In the event Business Associate receives a subpoena, court or administrative order or other
discovery request or mandate for release of PHI, the affected Covered Entity shall have the right to control Business Associate's response to
such request, provided that, such control does not have an adverse impact on Business Associate's compliance with existing laws. Business
Associate shall notify the Covered Entity of the request as soon as reasonably practicable, but in any event within seven (7) business days of
receipt of such request.
16. Availability of Books and Records. Business Associate hereby agrees to make its internal practices, books, and records available to the
Secretary of the Department of Health and Human Services for purposes of determining compliance with the HIPAA Rules.
17. Breach of Contract by Business Associate, In addition to any other rights a party may have in the Agreement, this Addendum or by
operation of law or in equity, either party may: i) immediately terminate the Agreement if the other party has violated a material term of this
Addendum; or ii) at the non -breaching party's option, permit the breaching party to cure or end any such violation within the time specified
by the non -breaching party. The non -breaching party's option to have cured a breach of this Addendum shall not be construed as a waiver
of any other rights the non -breaching party has in the Agreement, this Addendum or by operation of law or in equity.
18. Effect of Termination of Agreement. Upon the termination of the Agreement or this Addendum for any reason, Business Associate shall
return to a Covered Entity or, at the Covered Entity's direction, destroy all PHI received from the Covered Entity that Business Associate
maintains in any form, recorded on any medium, or stored in any storage system. This provision shall apply to PHI that is in the possession
of Business Associate, subcontractors, and agents of Business Associate. Business Associate shall retain no copies of the PHI. Business
Associate shall remain bound by the provisions of this Addendum, even after termination of the Agreement or Addendum, until such time
as all PHI has been returned or otherwise destroyed as provided in this Section. For the avoidance of doubt, de -identified Customer Data
shall not be subject to this provision.
19. Injunctive Relief. Business Associate stipulates that its unauthorized use or disclosure of PHI while performing services pursuant to this
Addendum would cause irreparable harm to a Covered Entity, and in such event, the Covered Entity shall be entitled to institute
proceedings in any court of competent jurisdiction to obtain damages and injunctive relief.
20. Owner of PHI. Under no circumstances shall Business Associate be deemed in any respect to be the owner of any PHI created or.received
by Business Associate on behalf of a Covered Entity.
21. Data Usage Provision. Business Associate may aggregate and de -identify PHI and/or create limited data sets for use in research, evaluation
and for publication or presentation of patient care quality improvement practices and outcomes. The Parties understand and agree that such
aggregated and de -identified data is no longer PHI subject to the provisions of HIPAA and agree that Business Associate may retain such
limited data sets indefinitely thereafter. Business Associate agrees that it will comply with all terms of this Agreement with respect to the
limited data sets and that it shall not re -identify or attempt to re -identify the information contained in the limited data set, nor contact any of
the individuals whose information is contained in the limited data set.
22. Safeguards and Appropriate Use of Protected Health Information. Covered Entity is responsible for implementing appropriate privacy and
security safeguards to protect its PHI in compliance with HIPAA. Without limitation, it is Covered Entity's obligation to:
22.1. Not include PHI in information Covered Entity submits to technical support personnel through a technical support request or to
community support forums. In addition, Business Associate does not act as, or have the obligations of a Business Associate under the
HIPAA Rules with respect to Customer Data once it is sent to or from Covered Entity outside ESO's Software over the public
Internet; and
22.2. Implement privacy and security safeguards in the systems, applications, and software Covered Entity controls, configures and
connects to ESO's Software.
23. Third Party Rights. The terms of this Addendum do not grant any rights to any parties other than Business Associate and the Covered
Entity.
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DocuSign Envelope ID: A3520113-D315-43FE-9D2F-CF5BD2385IBIT CIQ
CONFLICT OF INTEREST QUESTIONNAIRE - FORM CIQ
For vendor or other person doing business with local governmental entity
This questionnaire reflects changes made to the law by H.B. 23, 84th Leg., Regular Session.
This questionnaire is being filed in accordance with Chapter 176, Local Government Code, by a vendorwho has a business relationship as defined
by Section 176.001(1-a) with a local govemmental entity and the vendor meets requirements under Section 176,006(a).
By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after the
date the vendor becomes aware of facts that require the statement to be filed. See Section 176,006(a-1), Local Government Code.
A vendor commits an offense if the vendor knowingly violates Section 176.006, Local Government Code. An offense under this section is a
misdemeanor.
1
Name of vendor who has a business relationship with local governmental entity.
ESO SOLUTIONS, INC.
2
❑ Check this box if you are filing an update to a previously fled questionnaire.
(The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the Ph business day
after the date on which you became aware that the originally filed questionnaire was incomplete or inaccurate.)
3 1 Name of local government officer about whom the information in this section is being disclosed.
Name of Officer
Describe each employment or other business relationship with the local government officer, or a family member of the officer, as described by Section
176.003(a)(2)(A). Also describe any family relations hip with the local government officer. This section, (item 3 including subparts A, B, C & D), must be
completed for each officer with whom the vendor has an employment or other business relationship as defined by Section 176.001(1-a), Local Government Code.
Attach additional pages to this Form CIQ as necessary.
A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the vendor?
71 E-1
Yes No
B. Is the vendor receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in
this section AND the taxable income is not received from the local governmental entity?
❑ Yes ❑ No
C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer
or director, or holds an ownership of one percent or more?
Yes E-1 No
D. Describe each employment or business and family relationship with the local government officer named in this section.
4
❑ 1 have no Conflict of Interest to disclose.
5 DocuSigned by:
rf
f_iIdYTIAtto k&IAMIn. 8/18/2021
s gp� .r doing business with the governmental entity Date
DocuSign Envelope ID: A3520113-D315-43FE-9D2F-CF5BD2385956
CONFLICT OF INTEREST QUESTIONNAIRE
For vendor doing business with local governmental entity
Acomplete copy of Chapter 176 ofthe Local Government Cade maybe fouiidathttp://www.statutes.legis,state,tx.us/ Docs/LG/htm/LG.176.htm. For easy
reference, below are some of the sections cited on this form.
Local Government Code 6176.001(1-a): "Business relationship" means a connection between two or more parties based on commercial activity of one of titc
parties. The term does not include a connection based on:
(A) a transaction that is subj ectto rate or fee regulation by a federal, state, or local governmental entityor an agency of a federal, state, or local
governmental entity;
(B) a transaction conducted at a price and subject to terms available to the public; or
(C) a purchase or lease of goods or services from aperson that is chartered by a state or federal agency and that is subject to regular examination by,
and reporting to, that agency.
Local Government Code 6176.003(a)(2)(A) and (B):
(A) A local government officer shall file a conflicts disclosure statement with respect to a vendor if:
(2) the vendor:
(A) has an employment or otherbusiness relationship with the local government officer or a family member of the officer that
results in the officer or family member receiving taxable income, other than investment income, that exceeds $2,500 during
the 12 -month period preceding the date that the offrcerbecomes aware that
(i) a contract between the local governmental entity and vendor has been executed; or
(ii) the local governmental entity is considering entering into a contract with the vendor,
(B) has given to the local government officer or a family member of the officer one or more gifts that have an aggregate value of
morethan$100 in the 12 -month period precedingthedate the officer becomes aware that:
(i) a contract between the local governmental entity and vendor has been executed; or
(ii) the local governmental entity is considering entering into a contract with the vendor.
Local Government Code 6 176.006(a) and (a-1)
(a) Avendor shall file a completed conflict of interest questionnaire if the vendor has a business relationship with a local governmental entity and:
(1) has an employment or other business relationship with a local government officer of that local governmental entity, or a family
member ofthe officer, described by Section 176.003 (a)(2)(A);
(2) has given a local government officer of that local governmental entity, or a family member of the officer, one or more gifts with the
aggregate value specified by Section 176.003 (a)(2)(B), excluding any gift described by Section 176.003 (a-1); or
(3) has a family relationship with a local government officer of that local governmental entity.
(a-1) The completed conflict of interest questionnaire must be filed with the appropriate records administrator not later than the seventh business day
after the later of:
(I) the date that the vendor:
(A) begins discussions or negotiations to enter into a contract with the local governmental entity; or
(B) submits to the local governmental entity an application, response to a request for proposals or bids, correspondence, or another
writing related to a potential contract with the local govemmental entity; or
(2) the date the vendor becomes aware:
(A) of an employment or other business relationship with a local government officer, or a family member of the officer,
described by Subsection (a);
(B) that the vendor has given one or more gifts described by Subsection (a); or
(C) of a family relationship with a local government officer.
City of Denton Ethics Code Ordinance Number 18-757
Definitions:
Relative: a family member related to a City Official within the third 3`a degree of affinity (marriage) or consanguinity (blood or adoption)
City Official: for purpose of this article, the term consists of the Council Members, Department Heads, or member of the Board of Ethics,
and zoning Commission Members, Board of Adjustment, Historic Landmark Commission, or Public Utilities Board
Vendor: a person who provides or seeks to provide goods, services, and/or real property to the City in exchange for compensation. This definition
does not include those property owners from whom the City acquires public right-of-way or other real property interests for public use.
Per the City of Denton Ethics Code, Section 2-273. —Prohibitions
(3) It shall be a violation of this Article for a Vendor to offer or give a Gift to City Official exceeding fifty dollars ($50.00) per gift, or multiple
cumulatively valued at more than two hundred dollars ($200.00) per a single fiscal year.
Per the City of Denton Ethics Code, Section 2-282. — Disposition (b), (5) ineligibility
If the Board of Ethics finds that a Vendor has violated this Article, the Board may recommend to the City Manager that the Vendor be deemed
ineligible to enter into a City contract or other arrangement for goods, services, or real property, for a period of one (1) year.
provided by Texas Ethics Commission www.ethics.state.tx.us Revised 11/30/2015